I-9 Inspections Surging – What Employers Need to Know

I-9 Inspections Surging – What Employers Need to Know

U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) unit announced this week that it has served over 2,700 Notice of Inspection (NOI) to U.S. employers in a five day span from July 16 to July 20, 2018. HSI has indicated its commitment to increase the number of I-9 inspections in the future “in an effort to create a culture of compliance among employers.”

A NOI informs business owners that HSI will be auditing their hiring records (I-9s) to determine whether they are complying with existing U.S. immigration laws. After receiving a NOI, U.S. employers are required to produce their company’s I-9s within three business days, after which HSI will conduct an inspection for compliance.

Non-compliance will likely result in civil fines and could also lay the groundwork for criminal prosecution if companies (or human resources departments) are knowingly violating the law. Additionally, all workers encountered during these investigations who are unauthorized to remain in the United States are subject to administrative arrest and removal.

There’s little doubt that the rise of I-9 inspections are part of the Trump Administration’s “comprehensive strategy to address and deter illegal employment” to “eliminate unfair competitive advantages for companies that hire an illegal workforce. . . .” Last fiscal year, U.S. businesses were ordered to pay $97.6 million in judicial forfeitures, fines, and restitution, and $7.8 million in civil fines for non-compliance.

We previously bloggedabout the importance for U.S. employers to have their I-9s in order and pro-active steps they can take to prepare for this increased scrutiny. Further complications exist for California employers that are required to comply with the Immigrant Worker Protection Act or AB 450. As many have noted, this places California employers in a particularly troublesome place, having to comply with two separate (and sometimes inconsistent) laws which could substantially affect their workforce availability. For example, under California law, employers must notify their workforce of an I-9 inspection within 72 hours of receipt of an NOI. The NOI posting may cause internal issues for the employer as many employees may not understand the inspection process and fear returning to work. Specifically, we have seen instances where companies with high foreign born employees see a large percentage of employees not show up after the NOI posting.

Moreover, President Trump is looking for a fight with the left-leaning State of California, and he knows that his power is incredibly strong and discretionary when it comes to enforcing the U.S. immigration laws. Now, it appears to be only a matter of time until ICE comes knocking on more California employers’ doors, ready to serve a NOI. It is always better for an employment to have already done an internal audit then be caught having to scramble to get all in order, under very stressful conditions, when ICE comes knocking.

Employers are advised to speak with experienced immigration counsel to address these compliance and enforcement issues. Wolfsdorf Rosenthal LLP has over 30 years of experience helping U.S. companies comply with U.S. immigration law.